Employers sometimes wonder what their options are when it's time for an employee to return from an extended period of leave under the Family Medical Leave Act (FMLA). A recent decision by the United States Court of Appeals for the Fourth Circuit indicates that while employees enjoy job protection while out on FMLA leave, there is some flexibility for employers seeking to balance employees' statutory rights with operational changes.
In Waag v. Sotera Defense Solutions
, the Fourth Circuit affirmed a lower court decision granting summary judgment against a former division director of operations on claim that he was denied a return to his position or one that was equivalent and terminated after taking leave FMLA leave. In his role as Director of Operations, plaintiff Gary Waag was asked in October of 2012 to be the Program Manager for a particular Department of Defense contract. His time in that role was short-lived, as he severely injured his hand in a non-work incident on October 12, and informed his employer that his physician put him off work through the end of the year. During his absence, the company replaced him as Project Manager on the contract. When he returned to work, he was reassigned to a different project while keeping the same salary, benefits and other terms and conditions of employment.
Around the time that Waag was transitioning back to work, the organization experienced financial difficulties due to federal budget sequestration. By February of 2013, it was apparent to organizational leaders that layoffs would be necessary. In selecting who would be laid off, management focused on business units that were underperforming despite high indirect costs, and employees working on less strategic priorities and/or whose work was not directly billable to the government. Waag fit the criteria and was laid off, while the individual who replaced him as Project Manager while he was out on leave was retained. Waag subsequently filed suit alleging that he was not returned to his position or a comparable one, and was terminated in violation of FMLA. The company filed a motion for summary judgment arguing that the position he was returned to was equivalent and that he was terminated for legitimate business reasons that were unrelated to his use of FMLA leave. The district court agreed, and granted the employer's motion. Waag appealed that decision.
In affirming the lower court's grant of summary judgment, the Fourth Circuit reasoned that all three of Waag's arguments failed to create genuine issues of material fact. First, his claim that the company violated FMLA by failing to return him to the Project Manager position failed because the statute and related regulations do not require employers to reinstate employees to the position that they occupied prior to taking protected leave in all cases. Instead, employers have the option of returning employees to the same or an equivalent position. Second, his claim that the company violated FMLA by failing to place him in an equivalent position failed because the position in which he was placed had equivalent salary, benefits, and terms and conditions of employment. Any differences between the two positions were de minimus. Finally, his claim that he was terminated in retaliation for using FMLA leave fails because the evidence showed that the company would have terminated him even if he had not taken protected leave, due to the company's financial struggles. As such, the court concluded that there were no genuine issues of material fact that necessitated trial, and affirmed the lower court's grant of summary judgment to the employer.